Smith v. Hernandez et al

Filing 30

ORDER Granting In Part and Denying In Part Plaintiff's 18 Motion to File First Amended Complaint, signed by Magistrate Judge Stanley A. Boone on 7/17/17. Thirty Day Deadline. (Marrujo, C)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 DELBERT J. SMITH, 13 14 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO FILE FIRST AMENDED COMPLAINT Plaintiff, 11 12 Case No. 1:16-cv-01267-DAD-SAB (PC) v. C. HERNANDEZ, et al., (ECF Nos. 19, 22) Defendants. THIRTY-DAY DEADLINE 15 16 Plaintiff Delbert J. Smith is appearing pro se and in forma pauperis in this civil rights 17 action pursuant to 42 U.S.C. § 1983. Currently before the Court is Plaintiff’s motion for leave to 18 file an amended complaint. 19 I. 20 PROCEDURAL HISTORY 21 Plaintiff filed the complaint in this action on August 26, 2016. (ECF No. 1.) The Court 22 screened Plaintiff’s complaint pursuant to 28 U.S.C. § 1915A(a), and found that it stated a 23 cognizable claim for excessive force in violation of the Eighth Amendment against Defendants 24 Hernandez, Cramer, and Zuniga. (ECF No. 6.) On October 13, 2016, an order issued requiring 25 Plaintiff to either file an amended complaint or notify the Court that he wished to proceed only 26 on those claims that were found to be cognizable. (Id.) On October 26, 2016 an order issued 27 directing service on Defendants Hernandez, Cramer, and Zuniga and dismissing all other claims 28 and defendants from this action. (ECF No. 8.) 1 1 Defendants Hernandez, Cramer, and Zuniga were served with the complaint and filed an 2 answer on January 31, 2017. (ECF Nos. 14, 16.) On February 1, 2017, the discovery and 3 scheduling order issued setting the pretrial deadlines in this action. (ECF No. 17.) On February 4 13, 2017, Plaintiff filed a motion to amend his complaint and a first amended complaint was 5 lodged. (ECF Nos. 18, 19.) On February 24, 2017, Defendants filed an opposition to the motion 6 to amend the complaint. (ECF No. 22.) 7 II. 8 MOTION FOR LEAVE TO AMEND 9 Plaintiff brings his motion for leave to amend stating that although the Court found his 10 excessive force claims to be cognizable, after receiving help from other prisoners, he realizes he 11 did not plead unlawful intent by the defendants in his complaint. Plaintiff seeks to amend his 12 complaint to correct his perceived deficiencies in the complaint. 13 Defendants oppose the motion on the ground that Plaintiff has added new claims related 14 to denials of water, food, and medical without identifying the specific defendant’s actions related 15 to these claims. Defendants contend that since Plaintiff has failed to allege any additional 16 claims, leave to amend the complaint should be denied on the ground of futility. 17 A. Legal Standard for Granting Leave to Amend 18 Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party’s 19 pleading once as a matter of course at any time before a responsive pleading is served. Fed. R. 20 Civ. P. 15(a)(1). Otherwise, a party may amend only by leave of the court or by written consent 21 of the adverse party, and leave shall be freely given when justice so requires. Fed. R. Civ. P. 22 15(a)(2). 23 In determining whether to exercise its discretion to grant leave to amend, the court 24 considers five factors: “(1) bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) 25 futility of amendment; and (5) whether the plaintiff has previously amended his complaint.” 26 Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004); Serra v. Lappin, 600 F.3d 1191, 1200 (9th 27 Cir. 2010). The factors are not given equal weight and futility alone is sufficient to justify the 28 denial of a motion to amend. Washington v. Lowe’s HIW Inc., 75 F. Supp. 3d 1240, 1245 (N.D. 2 1 Cal. 2014), appeal dismissed (Feb. 25, 2015). “[I]t is the consideration of prejudice to the 2 opposing party that carries the greatest weight.” Eminence Capital, LLC v. Aspeon, Inc., 316 3 F.3d 1048, 1052 (9th Cir. 2003). “Absent prejudice, or a strong showing of any of the remaining 4 [ ] factors, there exists a presumption under Rule 15(a) in favor of granting leave to amend.” Id.; 5 see also Griggs v. Pace Am. Grp., Inc., 170 F.3d 877, 880 (9th Cir. 1999) (the analysis should be 6 performed with all inferences in favor of granting leave to amend). 7 B. Allegations in First Amended Complaint 8 Plaintiff is an African-American inmate in the custody of the California Department of 9 Corrections and Rehabilitation. (First Am. Compl. (“FAC”) ¶ 1, ECF No. 19.) At the time of 10 the incidents alleged in the complaint, Plaintiff was housed at the California Correctional 11 Institute, Tehachapi (“CCI Tehachapi”). (FAC ¶ 1.) 12 On March 1, 2016, Plaintiff was placed in an administrative segregation housing unit 13 with a broken hand after a fight with a Sureno gang member. (FAC ¶ 1.) After hours of crying 14 “Man Down” to get medical attention, Plaintiff was handcuffed by a group of Hispanic 15 correctional officers and taken to the sally-port where he was kicked and beaten while in 16 handcuffs, thrown back into his cell, and told not to tell about the beating or he would be beaten 17 again. (FAC ¶ 2.) Officer C. Hernandez, who was the primary officer who beat Plaintiff, called 18 him a “black nigger” before putting Plaintiff back in handcuffs. (FAC ¶ 2.) There were four 19 other officers who participated in beating and kicking Plaintiff while he was handcuffed and on 20 the ground. (FAC ¶ 2.) 21 Plaintiff remained in his cell for the next five hours crying out for help continuously. 22 (FAC ¶ 3.) Plaintiff was again handcuffed, taken across the yard, and without any provocation 23 on Plaintiff’s part, he was told to stop resisting. (FAC ¶ 3.) Plaintiff was placed in a chokehold, 24 thrown on the ground, and beaten with batons by Officer Zuniga and other officers. (FAC ¶ 3.) 25 Plaintiff’s teeth were broken and he received bloody flesh wounds and has scarring on his back 26 and bicep from the beatings. (FAC ¶ 3.) Plaintiff was taken to Medical where he was given 27 medication and placed back in his cell. (FAC ¶ 3.) 28 On March 2, 2016, Officer Cramer came to Plaintiff’s cell and informed him that Plaintiff 3 1 was to be taken to Mental Health. (FAC ¶ 4.) Officer Cramer tightened the handcuffs so hard 2 that Plaintiff reacted by demanding that he speak to a lieutenant. (FAC ¶ 4.) Officer Cramer 3 responded by lobbing two pepper spray foggers into Plaintiff’s cell. (FAC ¶ 4.) Officer Cramer 4 wrote a report stating that Plaintiff had initially complied with the request to be handcuffed, but 5 after getting one handcuff on Plaintiff, Plaintiff yanked his hand back, pulling Officer Cramer’s 6 hand through the food port door at which time Officer Cramer used his other hand to deploy 7 pepper spray. (FAC ¶ 4.) Plaintiff contends that Officer Cramer used two hands to deploy the 8 pepper spray and if Officer Cramer’s hand and body occupied the food port as he claims, there 9 would not be enough space in the food port to maneuver the pepper spray. (FAC ¶ 4.) Plaintiff 10 also contends that the pepper spray foggers are routinely kept in a secured cabinet and the fact 11 that Officer Cramer had it on his person at the time he came to do the medical escort 12 demonstrates that he intended to use excessive force on Plaintiff. (FAC ¶ 4.) 13 Plaintiff alleges that two cans of pepper spray were thrown into his cell, and the two 14 foggers were so suffocating that he almost passed out. (FAC ¶ 4.) Plaintiff was then sprayed 15 with pepper spray, taken to a standing cage, and left there from morning to sunset with the 16 pepper spray still burning in his eyes, throat, and wounds without water, meals, or bathroom 17 breaks for the entire day. (FAC ¶ 4.) Plaintiff was forced to urinate on himself. (FAC ¶ 5.) 18 At sunset, Plaintiff was placed before a lieutenant, who before conducting a video 19 interview, told Plaintiff that, if he would say no comment to the questions asked about what 20 happened, the lieutenant would allow Plaintiff to see mental health. (FAC ¶ 6.) Plaintiff 21 complied and it was not until Plaintiff became suicidal that he was allowed to be alone with a 22 clinician. (FAC ¶ 6.) It was at this time that Plaintiff told what had occurred and, in fear for his 23 life, begged to be transferred from CCI Tehachapi. (FAC ¶ 6.) 24 After Plaintiff was transferred from CCI Tehachapi to California State Prison, Lancaster, 25 officials at CCI Tehachapi had Plaintiff written up for battery on Officer Cramer and offered 26 Plaintiff a short term secured housing unit term in exchange for a guilty plea. (FAC ¶ 6.) When 27 Plaintiff refused, Plaintiff’s case was referred for prosecution to Kern County. (FAC ¶ 6.) 28 Plaintiff has pled not guilty in the case, maintains his innocence, and intends to go to trial. (FAC 4 1 ¶ 6.) 2 Plaintiff is seeking $7,000,000.00 in damages and for this matter to be referred for 3 criminal prosecution of the defendants. (FAC ¶ 6.) Futility Justifies Denying Plaintiff’s Motion to File the Amended Complaint 4 C. 5 As stated above, in determining whether to grant leave to amend, the court considers the 6 factors of: “(1) bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility of 7 amendment; and (5) whether the plaintiff has previously amended his complaint.” To decide 8 whether it would be futile to allow Plaintiff to file an amended complaint, the Court considers 9 whether Plaintiff’s lodged first amended complaint states a cognizable claim. In determining 10 whether a complaint states a claim, the Court uses the same pleading standard used under Federal 11 Rule of Civil Procedure 8(a). A complaint must contain “a short and plain statement of the claim 12 showing that the pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual 13 allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, 14 supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 15 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 16 In reviewing the pro se complaint, the Court is to liberally construe the pleadings and 17 accept as true all factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 18 94 (2007). Although a court must accept as true all factual allegations contained in a complaint, 19 a court need not accept a plaintiff’s legal conclusions as true. Iqbal, 556 U.S. at 678. “[A] 20 complaint [that] pleads facts that are ‘merely consistent with’ a defendant’s liability . . . ‘stops 21 short of the line between possibility and plausibility of entitlement to relief.’” Iqbal, 556 U.S. at 22 678 (quoting Twombly, 550 U.S. at 557). Therefore, the complaint must contain sufficient 23 factual content for the court to draw the reasonable conclusion that the defendant is liable for the 24 misconduct alleged. Iqbal, 556 U.S. at 678. 25 This action is currently proceeding on Plaintiff’s excessive force claims against 26 Defendants Hernandez, Cramer, and Zuniga. (ECF No. 6.) Plaintiff moves for leave to amend 27 his complaint to include additional facts to demonstrate that the defendants’ conduct was 28 unlawful, however Plaintiff’s complaint sufficiently alleged claims of excessive force against 5 1 Defendants Hernandez, Cramer, and Zuniga. Plaintiff’s lodged first amended complaint states 2 that Plaintiff is bringing this action for excessive force in violation of the Eighth Amendment, 3 but Plaintiff includes additional facts that relate to claims other than the excessive force claims 4 that are proceeding in this action. However, Plaintiff has not linked the new acts alleged in the 5 first amended complaint to any named defendant. Further, Plaintiff has changed the factual basis 6 for his claim against Defendant Cramer. Accordingly, the Court finds that it is futile to grant 7 Plaintiff leave to file the lodged first amended complaint because Plaintiff has failed to state 8 claims based upon the new facts alleged. 9 Although the Court shall deny Plaintiff’s motion for leave to file the first amended 10 complaint lodged on February 19, 2017 on the ground of futility, Plaintiff shall be granted an 11 opportunity to file a first amended complaint to allege claims that may be properly joined in this 12 action. The Court provides Plaintiff with the legal standards that appear to apply to the facts 13 alleged in the lodged first amended complaint. 14 D. Legal Standards 15 1. Section 1983 Claims 16 Section 1983 provides a cause of action for the violation of a plaintiff’s constitutional or 17 other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 18 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); 19 Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). There is no respondeat superior liability 20 under section 1983, and therefore, Plaintiff must plead that the official has violated the 21 Constitution through his own individual actions. Iqbal, 556 U.S. at 677. To state a claim, 22 Plaintiff must demonstrate that each defendant personally participated in the deprivation of his 23 rights. Id.; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. 24 City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones, 297 F.3d at 934. In other words, 25 to state a claim for relief under section 1983, Plaintiff must link each named defendant with 26 some affirmative act or omission that demonstrates a violation of Plaintiff’s federal rights. 27 Plaintiff’s lodged first amended complaint contains factual allegations which could be 28 sufficient to state a claim, however, Plaintiff did not link any individual to the action and does 6 1 not state he is bringing any claims other than his excessive force claims. For example, Plaintiff 2 alleges that he was left standing in a cell for hours without being decontaminated after being 3 pepper sprayed, and without food, water, or bathroom breaks which forced him to urinate on 4 himself. But Plaintiff does not link any individual to these acts nor does he seek to bring an 5 Eight Amendment claim based on these facts. Also, Plaintiff alleges that after he yelled “man 6 down” for hours trying to get medical help, Defendant Hernandez called him a “black nigger” 7 before handcuffing him, beating and kicking him, and then threatening to beat Plaintiff again, but 8 states he is only bringing a claim for excessive force. If Plaintiff is not seeking to bring other 9 claims in this lawsuit, then these facts which are irrelevant as to whether excessive force was 10 used by the defendants should not be included in any amended complaint. 11 2. Eighth Amendment 12 The Eighth Amendment prohibits inhumane methods of punishment and inhumane 13 conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (citing 14 Farmer v. Brennan, 511 U.S. 825, 847 (1994) and Rhodes v. Chapman, 452 U.S. 337, 347 15 (1981)) (quotation marks omitted). Conditions must not involve the wanton and unnecessary 16 infliction of pain, Morgan, 465 F.3d at 1045 (citing Rhodes, 452 U.S. at 347) (quotation marks 17 omitted), thus, conditions which are devoid of legitimate penological purpose or contrary to 18 evolving standards of decency that mark the progress of a maturing society violate the Eighth 19 Amendment, Morgan, 465 F.3d at 1045 (quotation marks and citations omitted); Hope v. Pelzer, 20 536 U.S. 730, 737 (2002); Rhodes, 452 U.S. at 346. 21 a. Deliberate Indifference to Serious Medical Need 22 While the Eighth Amendment of the United States Constitution entitles Plaintiff to 23 medical care, the Eighth Amendment is violated only when a prison official acts with deliberate 24 indifference to an inmate’s serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th 25 Cir. 2012), overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th 26 Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Jett v. Penner, 439 F.3d 27 1091, 1096 (9th Cir. 2006). Plaintiff “must show (1) a serious medical need by demonstrating 28 that failure to treat [his] condition could result in further significant injury or the unnecessary and 7 1 wanton infliction of pain,” and (2) that “the defendant’s response to the need was deliberately 2 indifferent.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096). Deliberate indifference 3 is shown by “(a) a purposeful act or failure to respond to a prisoner’s pain or possible medical 4 need, and (b) harm caused by the indifference.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d 5 at 1096). The requisite state of mind is one of subjective recklessness, which entails more than 6 ordinary lack of due care. Snow, 681 F.3d at 985 (citation and quotation marks omitted); 7 Wilhelm, 680 F.3d at 1122. 8 b. Deliberate Indifference to Conditions of Confinement 9 While conditions of confinement may be, and often are, restrictive and harsh, they must 10 not involve the wanton and unnecessary infliction of pain. Morgan, 465 F.3d at 1045 (citing 11 Rhodes, 452 U.S. at 347) (quotation marks omitted). Thus, conditions which are devoid of 12 legitimate penological purpose or contrary to evolving standards of decency that mark the 13 progress of a maturing society violate the Eighth Amendment. Morgan, 465 F.3d at 1045 14 (quotation marks and citations omitted); Hope, 536 U.S. at 737; Rhodes, 452 U.S. at 346. 15 To prove a violation of the Eighth Amendment, the plaintiff must “objectively show that 16 he was deprived of something ‘sufficiently serious,’ and make a subjective showing that the 17 deprivation occurred with deliberate indifference to the inmate’s health or safety.” Thomas v. 18 Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (citations omitted). Deliberate indifference requires 19 a showing that “prison officials were aware of a “substantial risk of serious harm” to an inmate’s 20 health or safety and that there was no “reasonable justification for the deprivation, in spite of that 21 risk.” Thomas, 611 F.3d at 1150 (quoting Farmer, 511 U.S. at 844). The circumstances, nature, 22 and duration of the deprivations are critical in determining whether the conditions complained of 23 are grave enough to form the basis of a viable Eighth Amendment claim. Johnson v. Lewis, 217 24 F.3d 726, 731. 25 c. Excessive Force 26 The unnecessary and wanton infliction of pain violates the Cruel and Unusual 27 Punishments Clause of the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 5 (1992) 28 (citations omitted). For claims arising out of the use of excessive physical force, the issue is 8 1 “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously 2 and sadistically to cause harm.” Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam) (citing 3 Hudson, 503 U.S. at 7) (internal quotation marks omitted); Furnace v. Sullivan, 705 F.3d 1021, 4 1028 (9th Cir. 2013). The objective component of an Eighth Amendment claim is contextual 5 and responsive to contemporary standards of decency, Hudson, 503 U.S. at 8 (quotation marks 6 and citation omitted), and although de minimis uses of force do not violate the Constitution, the 7 malicious and sadistic use of force to cause harm always violates contemporary standards of 8 decency, regardless of whether or not significant injury is evident, Wilkins, 559 U.S. at 37-38 9 (citing Hudson, 503 U.S. at 9-10) (quotation marks omitted); Oliver v. Keller, 289 F.3d 623, 628 10 (9th Cir. 2002). 11 Factors that can be considered are “the need for the application of force, the relationship 12 between the need and the amount of force that was used, [and] the extent of injury inflicted.” 13 Whitley v. Albers, 475 U.S. 312, 321 (1986). Although the extent of the injury is relevant, the 14 inmate does not need to sustain serious injury. Hudson, 503 U.S. at 7; Wilkins, 559 U.S. at 3715 38. The Eighth Amendment’s prohibition on cruel and unusual punishments necessarily 16 excludes from constitutional recognition de minimis uses of physical force. Hudson, 503 U.S. at 17 9-10. 18 3. Equal Protection 19 Prisoners are protected under the Equal Protection Clause of the Fourteenth Amendment 20 from invidious discrimination based on race. Wolff v. McDonell, 418 U.S. 539, 556 (1974); see 21 also Turner v. Safley, 482 U.S. 78, 84 (1987); Bell v. Wolfish, 441 U.S. 520, 545 (1979). There 22 are two ways for a plaintiff to state an equal protection claim. A plaintiff can state a claim for 23 violation of the Equal Protection Clause, by showing “that the defendant acted with an intent or 24 purpose to discriminate against him based upon his membership in a protected class.” Serrano v. 25 Francis, 345 F.3d 1071, 1082 (9th Cir. 2003). Intentional in this context means that the 26 defendant acted, at least in part, because of the plaintiff’s membership in a protected class. 27 Serrano, 345 F.3d at 1082. Alternately, the plaintiff can state a claim by alleging that he was 28 intentionally treated differently than similarly situated individuals and there was no rational basis 9 1 for the difference in treatment. Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (2005); 2 Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). 3 4. Criminal Prosecution of Defendants 4 Plaintiff requests that the Court effect referral for criminal prosecution of the defendants 5 in this action. To the extent that Plaintiff seeks to have the Court order that these defendants be 6 criminally prosecuted, the United States Constitution delegates powers of the Federal 7 Government into three defined categories: the Legislative Branch, the Executive Branch, and the 8 Judicial Branch. Bowsher v. Synar, 478 U.S. 714, 721 (1986). It is the Executive Branch of the 9 United States that has exclusive authority and absolute discretion to decide whether to prosecute 10 a case. United States v. Nixon, 418 U.S. 683, 693 (1974). As the Judicial Branch, this Court 11 does not have the power to ensure that a civil litigant is criminally prosecuted. 12 5. Joinder 13 Finally, a basic lawsuit is a single claim against a single defendant. Federal Rule of Civil 14 Procedure 18(a) allows a plaintiff to add multiple claims to the lawsuit when they are against the 15 same defendant. Federal Rule of Civil Procedure 20(a)(2) allows a plaintiff to join multiple 16 defendants to a lawsuit where the right to relief arises out of the same “transaction, occurrence, 17 or series of transactions” and “any question of law or fact common to all defendants will arise in 18 the action.” However, unrelated claims that involve different defendants must be brought in 19 separate lawsuits. Fed. R. Civ. P. 18(a), 20(a)(2); Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 20 2011); George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). This rule is not only intended to 21 avoid confusion that arises out of bloated lawsuits, but also to ensure that prisoners pay the 22 required filing fees for their lawsuits and prevent prisoners from circumventing the three strikes 23 rule under the Prison Litigation Reform Act. 28 U.S.C. § 1915(g). 24 The Court advises Plaintiff that if he chooses to amend his complaint each claim that is 25 raised in his amended complaint must be permitted by either Rule 18 or Rule 20. Plaintiff may 26 state a single claim against a single defendant. Plaintiff may then add any additional claims to 27 his action that are against the same defendant under Rule 18. Fed. R. Civ. P. 18. Plaintiff may 28 also add any additional claims against other defendants if those claims arise from the same 10 1 transaction, occurrence, or series of transactions as his original claim. Fed. R. Civ. P. 20(a)(2). 2 Any attempt to join claims that are not permitted by the Federal Rules of Civil Procedure will 3 result in those claims being dismissed as improperly joined. 4 III. 5 CONCLUSION AND ORDER As Plaintiff has failed to state any additional cognizable claims and has changed the 6 7 factual basis for some of the claims proceeding in this action, Plaintiff’s motion to file the lodged 8 amended complaint shall be denied. However, given the liberal nature of Rule 15, the Court 9 finds that Plaintiff should be granted an opportunity to file an amended complaint in this action. 10 Accordingly, IT IS HEREBY ORDERED that: 11 1. Plaintiff’s motion for leave to file a first amended complaint is GRANTED IN PART AND DENIED IN PART as follows; 12 a. 13 Plaintiff’s motion to file the first amended complaint, lodged February 13, 2017 is DENIED; 14 15 b. Plaintiff is GRANTED leave to file a first amended complaint; 16 2. Within thirty (30) days from the date of service of this order, Plaintiff shall file a first amended complaint; and 17 3. 18 If Plaintiff fails to file a first amended complaint in compliance with this order, 19 this action will proceed on the claims found to be cognizable in the October 13, 20 2016 screening order. 21 22 IT IS SO ORDERED. 23 Dated: July 17, 2017 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 11

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